The opinion of the court was delivered by: MICHAEL MIHM, District Judge
This Order is in response to Plaintiff's recent filing in this
case. The following is a brief history of this case is necessary
to understand the nature of Plaintiff's current request and this
Plaintiff filed a Petition to Proceed without Prepayment of
Fees in this case on July 13, 2005. In response to this Petition,
the Court ordered Plaintiff to inform the Court of the basis of
his lawsuit and to state exactly what relief he was seeking from
the Defendants. The Court further informed Plaintiff that if he
failed to file such a document prior to August 19, 2005, his
Petition to Proceed without Prepayment of Fees would be denied
and this matter would be terminated. Plaintiff did not respond to
the Court's Order and therefore his Petition was denied and the
case was terminated on August 23, 2005. On October 17, 2005,
Plaintiff filed a Motion for Reconsideration of the Court's Order
to Proceed without Prepayment of Fees. On November 7, 2005, the
Court denied the Motion to Reconsider because the Motion was
largely an effort to have the Court address the allegations
stated in his Complaint and not the decision regarding the
Petition to Proceed without Prepayment of Fees. In its Order, the Court noted that the only allegation
in Plaintiff's Motion to Reconsider that was appropriate for a
Motion to Reconsider was Plaintiff's allegation that he had
already paid the filing fee. A review of the record indicated
that the filing fee had not been paid. In denying his Motion to
Reconsider, the Court informed the Plaintiff that if he could
prove that he had paid the filing fee in a timely manner, the
Court would be willing to consider a motion to reopen the case.
In response, Plaintiff submitted a letter to the Court stating
that he paid his filing fee and included a copy of the money
order. However, upon review of Plaintiff's contentions, the Court
realized that Plaintiff may have possibly brought a similar case
against a different group of defendants. That case 05-1229 was
assigned to the other District Court Judge in this Division.
Although it was not clear if the Plaintiff in each case was the
same individual because the first names were different, there
were sufficient indications in the Complaints of each case to
indicate that they were being brought by the same person.
Accordingly, the Court issued a text order in both cases
informing the Plaintiff that there was no way to determine from
the Court's file whether the filing fee submitted by the money
order was intended for payment of the filing fee in the instant
case (05-1199) or in 05-1229. The Court also ordered the
Plaintiff to advise the Court regarding which case the money
order should have been docketed in and to submit the filing fee
for the other case. Finally, the Court ordered the Plaintiff to
inform the Court if the Plaintiff in each case was the same
In addition to the previous order, the Court issued another
order in the instant case reminding Plaintiff that the Court's
Order dated July 7, 2005 required Plaintiff to "inform the Court
of the basis of his lawsuit and exactly what he is seeking from
the Defendants" and advising that Plaintiff's Motion to
Reconsider did not adequately provide this information.
Therefore, the Court ordered Plaintiff to file within 14 days a brief, cogent explanation of
the legal basis for his lawsuit and informed the Plaintiff that
upon receipt of that document and resolution of the issue
regarding the filing fee, the Court would then determine whether
the case should be reopened.
On December 12, 2005, Plaintiff filed a letter with the Court
I want the court to refund my 250. I will file a new
case. Bo Barnes and Lorry Barnes are the same person.
Thank you, Bo Barnes. This 250 money order was for
case #1:05-cv-1199 Barnes v. Baker, Miller, Markoff,
(Case No. 05-1199, Docket Entry #5, Dec. 12, 2005).
Plaintiff has not set forth any legal basis for the Court to
refund his filing fee in this case (case number 05-1199).
Accordingly, Plaintiff's request for a refund is denied and case
number 05-1199 remains terminated. Additionally, with respect to
the other pending case, (case number 05-1229), to date, the Court
has not received the required filing fee. Therefore, Plaintiff is
granted fourteen (14) days to pay the required filing fee. If the
filing fee is not received prior to this date, Plaintiff's case
will be dismissed for failure to prosecute and, pursuant to Rule
41(b) of the Federal Rules of Civil Procedure, this dismissal
will constitute an adjudication on the merits.
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